[Avodah] Your brother's a Mumar; here's the solution!

[Micha Berger]

On Wed, Jun 18, 2008 at 01:21:37AM -0400, Zev Sero wrote:
: >Couples in love sign prenups all the time.
: 
: And it's a big question how serious they can possibly be...

The kesuvah itself is a prenup.

:                                                            But at least
: there you have a shtar and witnesses, and devarim shebelev einam devarim.
: Here we're talking davka about devarim shebelev.  If the tenai is not
: meant seriously it's worthless.  And I don't believe it is possible for
: any couple to take it seriously, especially bish'as biah.  Any couple who
: make this tenai and mean it, shouldn't be getting married.

The AhS proposed this idea for avoiding her becoming a yevamah, and RMYG
asked why the same tenai couldn't be used to avoid agunos. I think what
RZS is now saying boils down to ein adam oseh be'ilaso be'ilas zenus,
and not even bitenai.

I think this latter formulation is more tenable than his earlier post
which presumes a young couple in love. Using Shalom Aleichem as a cultural
source, he found it plausible to tell an audience of the AhS's day that
(as the songwriter later put it) "the first day I met you was on our
wedding day..."

And in order to avoid agunos, we would have to say that such a tenai
isn't only possible, but can be presumed doable by every husband during
each and every occasion.

Focusing on what a person is capable of thinking beshe'as ma'aseh is
consistent with the norms of his era, and with a chazaqah to boot. In
the case of avoiding yibum, though, I could see a difference between
the AhS's proposal and the usual ain adam oseh be'ilaso.

The AhS groom trying to avoid her becoming a yevamah to a mumar is
doing it out of concern for his bride. Rather than a denial of love, his
willingness to make his marriage conditional is an expression of it. He
is trying to save her from someone he believes could really keep her an
agunah -- his meshumad brother would would never consent to yibum. But
beshe'as ma'aseh, who could be seriously thinking they would need to
protect her from himself and still be in a state of mind where he would
want to protect her?

And to say we could make this the norm, such that any agunah could be
presumed to have been married al tenai? Impossible.

If I thought it were likely, ironically, the wife of an ignorant man
would have been better off in such a scenario. According to RMF, if
a couple think they were married in a ceremony (eg non-O weddings),
we don't say "ein adam" because we know he was acting al da'as the idea
that they're already married. So, the ignorant husband would never have
in mind that this time it's qidushin. The lamdan, who knows the wedding
was al tenai, might in a moment of passion be thinking that this time
it's unconditional, without tenai.

Tir'u baTov!
-Micha

-- 
Micha Berger             "The worst thing that can happen to a
micha at aishdas.org        person is to remain asleep and untamed."
http://www.aishdas.org          - Rabbi Simcha Zissel Ziv, Alter of Kelm
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